[2026] EWHC 1843 (Ch)Case No CH-2024-000298Case No CH-2025-000221IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCHANCERY APPEALSON APPEAL FROM THE ORDER OF ICC JUDGE BARBER OF 14 NOVEMBER 2024 AND THE ORDER OF DEPUTY ICC JUDGE AGNELLO KC OF 4 MARCH 2025IN THE MATTER OF FORE FITNESS INVESTMENTS HOLDINGS LIMITEDAND IN THE MATTER OF THE COMPANIES ACT 2006Venue Royal Courts of Justice7 Rolls HouseVenue Rolls BuildingLondonEC4A 1NLDate 18 June 2026
Before
MR JUSTICE RICHARDS
Between
MR LORIMER-WINGAppellantMR HASHMIRespondentThe Claimant in person with some assistance from MR D EATON TURNER on a pro bono basis for in personMR S REED for DefendantJUDGMENTIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.Digital Transcription by Marten Walsh Cherer Ltd.2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
[1]Before me are Mr Lorimer-Wing’s appeals against two orders: i) The Unless Order Appeal is against the order of ICC Judge Barber of 14 November 2024 (the Unless Order). By that order, Judge Barber made an order that unless Mr Lorimer-Wing satisfied certain costs awards made previously in proceedings relating to the petition under s994 of Companies Act 2006 (the Petition) alleging unfair prejudice in relation to Fore Fitness Investment Holdings Limited (the Company), then his defence would be struck out and he would be debarred from defending the Petition. ii) The Quantum Appeal is against the order of Deputy ICC Judge Agnello KC of 4 March 2025 (the Quantum Order). By that order, Judge Agnello fixed the fair value of Mr Hashmi’s shares in accordance with an earlier order of Chief ICC Judge Briggs (the Briggs Order) that ordered Mr Lorimer-Wing to purchase Mr Hashmi’s shares in the Company at their fair value.
BACKGROUND
[2]On 10 August, 2021, Mr Hashmi presented the Petition asserting unfairly prejudicial conduct of the affairs of the Company. Mr Lorimer-Wing defended the Petition and there was to be a split trial. The first trial was to be on liability, including the nature of the remedy if unfair prejudice was established. The second would, if liability was established, be a trial on quantum.[3]The liability trial took place over four days in May 2023 following which Chief ICC Judge Briggs gave judgment in favour of Mr Hashmi and ordered Mr Lorimer-Wing to purchase Mr Hashmi’s shares in the Company at fair value. Chief ICC Judge Briggs formulated the parameters for the determination of fair value. He made case management directions, which included permission for both parties to adduce expert evidence on valuation matters, to enable that fair value to be determined. Chief ICC Judge Briggs also made a costs award in Mr Hashmi’s favour.[4]Pursuant to the permission that Chief ICC Judge Briggs had granted, Mr Hashmi instructed Mr Darryl Ashing, a chartered accountant, to value the Company and his shares at the relevant dates. Mr Ashing had given expert evidence before in McCrum v Wilson [2021] EWHC 1762 (Ch) and was described in that case in the following terms: Mr Ashing is a Fellow of the Institute of Chartered Accountants in England & Wales and Managing Director of the firm Ashings Limited. He established its corporate finance practice and has assisted many start-up and early stage businesses raise finance. He also has considerable experience as a director and as an advisor to boards of directors including in respect of technology businesses….[5]Mr Lorimer-Wing sought to challenge Chief ICC Judge Briggs’s order on 14 grounds. Miles J gave permission only to challenge the costs aspect and on 14 and 25 March 2024, Edwin Johnson J heard(i) Mr Lorimer-Wing’s appeal against the costs order and(ii) an oral application for permission to appeal on those grounds on which Miles J had refused permission.[6]Edwin Johnson J refused Mr Lorimer-Wing permission to appeal on the additional grounds sought and dismissed the appeal. He made a costs order in the sum of some £19,578 in Mr Hashmi’s favour.[7]Meanwhile, the Petition was proceeding towards the quantum trial. Mr Lorimer-Wing took a number of steps in interlocutory proceedings that led to further costs awards being made against him: i) He resisted an application for disclosure that Mr Hashmi had made. At a hearing on 16 January 2024, ICC Judge Burton granted the disclosure sought and made a costs award of some £16,800 against Mr Lorimer-Wing. ii) Mr Lorimer-Wing did not challenge ICC Judge Burton’s costs order by seeking permission to appeal to the High Court. Instead, on 7 February 2024, he made an urgent application in the Interim Applications List of the Chancery Division seeking(i) an injunction to stay further proceedings until the conclusion of the quantum trial and(ii) an order to stop time running for an appeal against ICC Judge Burton’s order. That urgent application was heard by Leech J on 14 February 2024, and was dismissed with an order that Mr Lorimer-Wing pay Mr Hashmi’s costs, summarily assessed at £10,000.[8]Mr Ashing produced his valuation report for Mr Hashmi on 28 February 2024, and that was served on Mr Lorimer-Wing on 29February 2024. Mr Lorimer-Wing served his own expert report later and the customary discussions between the experts took place.[9]The three costs orders described in paragraphs 6 and 7 totalled £46,378. Mr Lorimer-Wing had not paid them and Mr Hashmi applied on 29 May 2024 for Mr Lorimer-Wing’s defence to the Petition to be struck out and for him to be debarred from participating further in proceedings on the Petition unless those cost orders were paid in full within 14 days. That application was heard by ICC Judge Barber on 14 November 2024. She acceded to the application and she made the Unless Order that I have already described. Mr Lorimer-Wing failed to comply with the terms of the Unless Order and so he was debarred from further participation in the proceedings and his defence was struck out.[10]On 10 December 2024 Mr Lorimer-Wing, applied for permission to appeal against the Unless Order on 11 grounds. He applied for a stay of execution, but that was refused by Rajah J on 19 December 2024 and so the quantum trial went ahead.[11]The quantum trial took place on 4 March 2025 and was heard by Deputy ICC Judge Agnello KC. Mr Ashing attended that trial and was available to answer any questions that the judge had on his report. However Mr Lorimer-Wing did not cross-examine Mr Ashing as the sanction imposed by the Unless Order had been activated. Deputy ICC Judge Agnello KC determined that the value of Mr Hashmi’s shares was some £3,318,000 which was almost exactly the figure specified in Mr Ashing’s expert report.[12]The application for permission to appeal in the Unless Order Appeal was rejected on paper by Leech J on 27 March 2025. Mr Lorimer-Wing sought to renew that application for permission to appeal orally and the oral renewal hearing was listed to be heard before Leech J on 20 June 2025.[13]In a dramatic turn of events, on 17 June 2025, Mr Ashing sent a letter to Leech J expressing concerns about his own valuation report. He alluded to health issues from which he had suffered and said that as a consequence of those, his report included errors, including a failure properly to take into account the Company’s debt. He said that his revised opinion was that the true value of Mr Hashmi’s shares was likely to be substantially less than that set out in his report although he did not give a precise figure.[14]On 18 June 2025, Mr Lorimer-Wing filed an application (the ICC Set Aside Application) in the Insolvency and Companies Court (ICC) asking the ICC, inter alia, to set aside the Quantum Order on the ground that it was obtained by fraud.[15]On 19 June 2025 a representative from the Institute of Chartered Accountants in England and Wales (ICAEW) wrote to the court expressing concerns regarding Deputy ICC Judge Agnello KC’s findings on valuation at the quantum trial. The ICAEW said that it had instructed a valuation expert at a reputable firm who was “firmly of the view” that the Company had no value at the relevant date. I myself have recently received correspondence from the ICAEW to say that the report to which they alluded in their letter was a final report. I do not know, however, the basis on which the conclusions were reached. Neither Mr Lorimer-Wing nor Mr Hashmi has access to the ICAEW’s report.[16]Following his receipt of letters from Mr Ashing and the ICAEW, Leech J gave Mr Lorimer-Wing permission to appeal in the Unless Order Appeal. He also made an order in the following terms staying the effect of the Unless[17]Mr Hashmi applied for security for costs in the Unless Order Appeal on 25 July 2025. Rajah J refused that application.[18]On 16 August 2025, Mr Lorimer-Wing filed an appellant’s notice in the Quantum Appeal. Accordingly, at this point, there were, somewhat unsatisfactorily, two parallel challenges to the Quantum[19]On 27 October 2025, Thompsell J gave Mr Lorimer-Wing permission to appeal in the Quantum Appeal but raised some queries as to whether Mr Lorimer-Wing was alleging fraud or not. Thompsell J also gave Mr Lorimer-Wing permission to rely on fresh evidence.[20]In November 2025, Mr Hashmi made an open offer that the Quantum Order could be set aside by consent. However, that offer did not obtain any traction. I am not entirely sure why, but it does seem to be, in part at least, because Mr Lorimer-Wing wished to continue with his allegations of fraud against Mr Hashmi.[21]Mr Lorimer-Wing duly sought to amend his grounds of appeal in the Quantum Appeal to allege fraud. In essence, Mr Lorimer-Wing wished to assert that it was not just the case that Mr Ashing had done a poor job in his expert report. Rather, he sought to argue that Mr Hashmi had fraudulently provided Mr Ashing with documents that, among other failings, overstated the Company’s projected revenue to induce him to produce a high valuation.[22]On 18 March 2026 I refused permission to make that amendment on the grounds that the allegation had insufficient prospects of success. At the same hearing, I resolved the issue arising from the two routes of challenge to the Quantum Order. I dismissed the ICC Set Aside Application broadly on the basis that the Court of Appeal in Vodafone Group Plc v IPcom GmbH and Co KG [2023] EWCA Civ 113 made it impermissible to set aside the Quantum Order (which was a final order).[23]I listed the Unless Order Appeal and the Quantum Appeal to be heard at the same time and I ordered Mr Lorimer-Wing to pay Mr Hashmi’s costs of the ICC Set Aside Application and the failed amendment application. This is the hearing of those two appeals. Mr Hashmi does not oppose the Quantum Appeal, and has not opposed it since November 2025. He agrees that the Quantum Appeal should be allowed and the Quantum Order set aside. The parties are, however, apart on directions for a remitted trial of quantum before the ICC. THE UNLESS ORDER APPEAL The Grounds of Appeal
THE UNLESS ORDER APPEAL
[24]When granting permission to appeal, Leech J invited Mr Lorimer-Wing to focus his grounds of appeal. Mr Lorimer-Wing has done so. Only two grounds of appeal against the Unless Order are before me: i) Ground 1, in essence, is that this court must reconsider the Unless Order given the evidence that has come to light since it was made about the unreliability of the opinions Mr Ashing expressed in his expert report. ii) Ground 2, in essence, is that continuing enforcement of the Unless Order would violate Mr Lorimer-Wing’s right to a fair trial.[25]Rajah J has given Mr Lorimer-Wing permission to rely on fresh evidence in the form of his witness statement of 25 July 2025 and exhibits.
ICC Judge Barber’s judgment
[26]At paragraph 13 of her judgment, ICC Judge Barber directed herself by reference to [29] of the judgment of Sir Richard Field in Michael Wilson and Partners v Sinclair [2017] 5 Costs LR 877 as to factors she should bear in mind when considering whether to make an unless order. There is no suggestion that her self-direction was wrong in law.[27]At paragraph 14, ICC Judge Barber directed herself by reference to the judgment of the Court of Appeal in MV York Motors v Edwards [1982] 1 WLR 444 to the effect that it would be a wrongful exercise of discretion to order a defendant to pay costs as a condition of being granted leave to defend (following a summary judgment application) if the defendant would never be able to pay the sum in question. That would be tantamount to giving judgment for a claimant even though the court had just found that there was a dispute that ought to be tried.[28]ICC Judge Barber also concluded from that authority that a defendant seeking to avoid a financial condition by reason of impecuniosity must put forward proper evidence as to his or her financial situation. That proper evidence should address the possibility of getting money from relatives, business associates and such like.[29]At paragraph 8 ICC Judge Barber found that on 1 February 2024 Mr Lorimer-Wing was suggesting a payment plan to pay the £16,800 of costs ordered by ICC Judge Burton on the basis that the sum exceeded the entirety of the funds that he possessed. However, she found that Mr Lorimer-Wing had not told Mr Hashmi that two days earlier he had transferred £18,000 and £6,000 out of his current account and transferred £18,000 to his wife. At paragraph 9 of her judgment, ICC Judge Barber noted that Mr Lorimer-Wing had not addressed that episode in his evidence, although Mr Lorimer-Wing sought to explain the situation in his submissions.[30]At paragraph 17 of her judgment, ICC Judge Barber noted that there was a lack of “detailed, cogent or proper evidence” of Mr Lorimer-Wing’s inability to raise funds from others or by way of second mortgage on the family home. She found that the evidence suggested that Mr Lorimer-Wing had equity in the family home of some £100,000 at least, and maybe as much as £300,000.[31]At paragraph 18, ICC Judge Barber noted that Mr Lorimer-Wing had sought to fill the gap in his evidence with submissions by saying that he had approached his bank for a remortgage but had been told that he was not eligible. ICC Judge Barber concluded that there was no evidence of Mr Lorimer-Wing approaching anyone other than a single bank.[32]At paragraph 19, the judge referred to Mr Lorimer-Wing’s own evidence that his outgoings were around £6,000 a month. That necessarily meant that, on his evidence, in the year ending April 2023 friends and family had provided him with funds of £72,000. However, Mr Lorimer-Wing had not said anything in his evidence about attempts to approach the same friends or family for a loan or financial contribution to enable the costs award to be met. She expressed the evaluative conclusion at [20] that Mr Lorimer-Wing’s evidence on his finances left too many questions unanswered.[33]At paragraph 21 of her judgment, ICC Judge Barber referred to the policy of costs orders being made immediately following interlocutory applications as being to discourage irresponsible litigation at the interlocutory stage. She found that Mr Lorimer-Wing, had “adopted a pattern of irresponsible, unreasonable and disproportionate stances” in the litigation to date. She was highly critical of the two-day appeal and application for permission to appeal made before Edwin Johnson J. She concluded at [21] to [24] that(i) the costs orders were of Mr Lorimer-Wing’s own making and arose because of his unreasonable stance in interlocutory proceedings,(ii) Mr Lorimer-Wing’s evidence fell far short of demonstrating that he could not raise the money necessary to pay the costs orders and(iii) policy considerations supported the making of an unless order.
Ground 1
[34]The Unless Order has the sanction of debarment built into it. If, as turned out, the costs were not paid, the sanction of debarment followed automatically. The Unless Order Appeal is not an application for relief from sanctions (which would need to be made in the ICC rather than on appeal to this court). Nor is it an appeal that seeks to argue that, in all the circumstances, ICC Judge Barber should not have exercised discretion to impose the sanction of debarment. Once the Unless Order was imposed, there was no separate discretion to be exercised on sanction since the Unless Order specified a single sanction that became operative as soon as it was not complied with. The Unless Order Appeal seeks to set aside the Unless Order in its entirety and so achieve the result that no sanction is imposed for Mr Lorimer-Wing’s failure to pay costs.[35]Moreover, now that it is common ground that the Quantum Appeal must be allowed and the matter remitted back to the ICC, it would have been open to Mr Lorimer-Wing to make an application in remitted proceedings before the ICC to the effect that, given the change of circumstances arising now that it is known that Mr Ashing’s report was unsatisfactory, he should be allowed some rights of participation in the future despite the Unless Order. He could also have invited this court, when setting the terms of remittal of the Quantum Appeal to the ICC, to make case-management directions that give him greater rights of participation in those remitted proceedings, despite the Unless Order. The Unless Order Appeal involves Mr Lorimer-Wing taking a different approach from those: he is asking the High Court to allow an appeal against the Unless Order so that the Unless Order is set aside altogether and he therefore suffers no sanction at all for failure to pay the costs orders.[36]I heard submissions both from Mr Eaton Turner (to whom I express my gratitude for helping Mr Lorimer-Wing on a pro bono basis) and from Mr Lorimer-Wing himself. They put the case somewhat differently.
The case on Ground 1 as advanced by Mr Eaton Turner
[37]In his oral submissions on behalf of Mr Lorimer-Wing, Mr Eaton Turner accepted that he had to overcome the familiar high bar necessary to challenge ICC Judge Barber’s case-management decision to make the Unless Order in the first place.[38]Mr Eaton Turner submitted that ICC Judge Barber had ignored a relevant consideration. She did not consider how serious it would be if a debarring order was made that meant that expert evidence, which the court had no real choice but to accept, was tendered without any effective challenge or contradiction. Mr Eaton Turner suggested that expert evidence is more sensitive in this regard than factual evidence and ICC Judge Barber did not turn her mind to the seriousness of the consequences that might follow if the sanction in the Unless Order was triggered. He pointed me to the transcript of the hearing before ICC Judge Barber and suggested that when Mr Lorimer-Wing sought to raise this point, it was peremptorily and robustly dismissed when it should have been taken more seriously.[39]The first difficulty is that this is not a ground of appeal that Mr Lorimer-Wing has advanced. Mr Lorimer-Wing’s focus in his grounds of appeal was on why the court should set aside the Unless Order given what is now known. He was not arguing that it was wrong when made because it ignored a relevant consideration.[40]Even putting that point to one side, the second objection is that ICC Judge Barber clearly did have in mind the serious consequences that would follow, in relation to expert evidence, if the Unless Order was made and the sanction triggered. She referred at [5] of her judgment to the fact that there was permission to rely on expert valuation evidence at the quantum trial. She gave herself a careful direction at [13] to [15] that included a reference to Mr Lorimer-Wing’s rights under Article 6 of the European Convention on Human Rights (Article 6) precisely because any triggering of the sanction in the Unless Order would significantly and adversely affect Mr Lorimer-Wing’s ability to put his case.[41]In any event, I do not accept the premise of Mr Eaton Turner’s submission as I consider the risk posed by an inability to advance expert evidence is actually lower than the risk posed if factual evidence cannot be put forward. If there was a dispute on, for example, a matter like what happened on a particular telephone call, the court would find it difficult to disbelieve plausible evidence of Mr Hashmi’s witness if that evidence could not be challenged. However, experts owe duties to the court under CPR 35. At the time ICC Judge Barber made the Unless Order, there was no reason to believe that Mr Ashing would fail in his duties. Therefore, even if the sanction in the Unless Order were triggered, ICC Judge Barber could realistically expect that the court would benefit from dispassionate expert evidence on the true value of Mr Hashmi’s shares even if that evidence could not be challenged. Even if it were a permissible ground of appeal, I am not prepared to accept that the error that Mr Eaton Turner alleges is present.[42]Mr Eaton Turner also submitted, in an argument that was closer to Mr Lorimer-Wing’s grounds of appeal, that the court would not now make the Unless Order given what it now knows about Mr Ashing’s report. Therefore, he submitted that the Unless Order was wrongly made on the basis that, given what we know now, it would never have been made.[43]That might be a point that could be made before the ICC in remitted proceedings on quantum in support of a relaxation or variation of the sanction imposed by the Unless Order. It might also raise an issue of relevance when I fix the terms of remittal of the quantum issue back to the ICC. However, I do not accept that this submission sets out the correct test for an appeal against the Unless Order. The test, on an appeal against exercise of a discretion is not whether with full knowledge of future events the court would have made the same order. If that were the test, lots of exercises of judicial discretion would be vulnerable if events turned out differently from what was expected.[44]I do not, therefore, accept the submissions that Mr Eaton Turner advanced in support of Ground 1.
Mr Lorimer-Wing’s submissions in support of Ground 1
[45]Mr Lorimer-Wing put matters slightly differently. He said that the Unless Order is the means by which he was debarred and that injustice would ensue if it continued in its current form as current events have shown the unreliability of Mr Ashing’s report and the ICAEW now suggests that Mr Hashmi’s shares were worth nothing at the relevant time.[46]Mr Lorimer-Wing derived some support from some statements of Leech J when giving permission to appeal. At [9(2)] to [9(4)] of his oral judgment, Leech J included among his reasons for concluding that the Unless Order Appeal had a real prospect of success and that new evidence should be admitted: (2) [ICC Judge Barber] did not know that once the Appellant was debarred from defending, the Respondent would file and rely on an expert witness who had relied on fund raising forecasts which were arguably false, or that he was unfit to give evidence or unable to produce a report which was safe and reliable. In those circumstances, the Appeal Court would be entitled to exercise its discretion afresh. (3) The Appellant has a real prospect of persuading an Appeal Court that it would be a denial of his Article 6 rights if the order continued to prevent him from challenging the judgement and the order of Deputy ICC Judge Agnello KC dated 4 March 2025 if, indeed, it was procured by fraud and that the appeal should be granted and the order set aside. (4) The Court will have to weigh up the Appellant’s own conduct in deciding whether to allow the Appeal. The judge was strongly influenced by a transfer of £18,000 by the appellant to his wife shortly before the time for payment in the Order. However, it is unnecessary for me to consider either of the issues which I considered in refusing permission to appeal on paper or, indeed, the additional evidence which the appellant has put in today. It is unnecessary for me to consider that evidence or those issues because I am not satisfied that the appellant’s conduct ought to prevent him from successfully prosecuting his appeal on the basis of the new evidence, even if the judge was right to characterise it the way she did.[47]Leech J was mistaken to the extent he was suggesting at [9(2)] that Mr Ashing filed his report after Mr Lorimer-Wing was debarred. Mr Ashing had in fact served his report well before that. However, even putting that point to one side, Mr Lorimer-Wing is over-reading Leech J’s statements. First, Leech J was concerned only with whether the proposed appeal got over the relatively low hurdle applicable to applications for permission to appeal.[48]Moreover, at the time Leech J gave permission to appeal, Mr Lorimer-Wing’s only challenge advanced to the Quantum Order was the ICC Set Aside application referred to in paragraph 14 above. Leech J’s points above were therefore directed at whether the Unless Order should, could or should prevent Mr Lorimer-Wing from pursuing that application. I can quite see how, if the Unless Order meant that Mr Lorimer-Wing simply had no means of challenging the Quantum Order, even though it is based on a flawed report, that would be a remarkable outcome. However, the Unless Order has not prevented the challenge to the Quantum Order. Indeed such a challenge is currently before the court, and both parties agree that Quantum Appeal should be allowed and the Quantum Order should be set aside, even if they do not agree on the terms on which that should happen. Therefore, far from Mr Lorimer-Wing being prevented from challenging the Quantum Order, that challenge is going to be successful.[49]Mr Lorimer-Wing also suggested that some of the cost orders which form the basis of the Unless Order might be shown to be wrong because of Mr Ashing’s later defective work. He asked me to stay those cost orders in exercise of my judicial discretion. Mr Lorimer-Wing says that Mr Hashmi is riding two horses. On one hand, he defends Mr Ashing when it comes to defending the cost orders, but disavows his work for the purposes of the Quantum Appeal. That prompted some submissions on behalf of Mr Hashmi to the effect that Mr Lorimer-Wing has a tendency to blame others for his own mistakes.[50]I do not need to make any findings as to the personal conduct of Mr Lorimer-Wing or Mr Hashmi to decide this issue and I will not do so. It is quite clear that I should not exercise any discretion I have to stay the costs orders whose non-payment led to the Unless Order for the following reasons: i) As to ICC Judge Burton’s £16,800 costs order referred to in paragraph 7.i), there has been no appeal against that. Mr Lorimer-Wing says that Mr Ashing should not have needed the bank statements that were the subject of the disclosure application and could have obtained the information he needed from financial statements. However, I am not prepared to conclude that assertion meant that bank statements were obviously unnecessary. It seems to me entirely possible that Mr Lorimer-Wing was unjustifiably digging in on disclosure matters and that the costs award followed as a consequence of that. ii) Leech J’s £10,000 costs order referred to in paragraph 7.ii) seems to me to flow from a misconceived application in the interim applications list. I do not think the effect of that cost order is undone by Mr Ashing’s later defective expert report. iii) Nor do I accept that Edwin Johnson J’s costs order is somehow tainted by Mr Ashing’s later work. That costs order was made following Mr Lorimer-Wing’s failed appeal and failed application for permission to appeal, following the liability trial in which Mr Ashing had no involvement.[51]Even if I did think that there was a problem with the costs orders, which I do not, it is not clear to me that I could stay them as they simply have not been challenged. Therefore, even if I did have power to stay those costs orders, I would not do so.[52]Of more apparent force is the argument given that what is now known about the Ashing report, the Unless Order could operate disproportionately. Mr Lorimer-Wing in effect says he suffered a near miss. If Mr Ashing and the ICAEW had not spoken up, he would have been stuck with the consequences of a defective piece of work from Mr Ashing and would have to pay a price for Mr Hashmi’s shares that is excessive. He says that the court should allow the Unless Order Appeal to prevent any possibility of a repeat occurrence.[53]I do not think Mr Hashmi’s first answer to this, that even if ICC Judge Barber did not know that Mr Ashing’s report was defective, she knew from exchanges with Mr Lorimer-Wing that he considered it fraudulent and wrong, addresses this point. There is a substantial difference between a litigation opponent, challenging a report, suggesting it is bad, and the expert himself, backed up by the ICAEW, saying that it is deficient.[54]However, there is much more force in Mr Hashmi’s second answer. Mr Lorimer-Wing is not challenging ICC Judge Barber’s conclusion that he had put forward an insufficiently full account of his finances. While he has asserted, but I have not accepted, that the costs awards underpinning the Unless Order may be unsound, he has not seriously disputed ICC Judge Barber’s finding that he “adopted a pattern of irresponsible, unreasonable and disproportionate stances in this litigation, which have inevitably run up considerable costs”. (In his oral submissions, Mr Lorimer-Wing did seek to open up the question of his finances. However, since his grounds of appeal do not seek to challenge ICC Judge Barber’s factual conclusions on that issue, I indicated that I would not hear oral submissions on that issue and Mr Lorimer-Wing made no application to amend his grounds of appeal.)[55]I do not consider, therefore, that looking at the circumstances known to ICC Judge Barber at the time, her order was wrong. She expressly directed herself on the correct legal test and applied it in a reasonable and rational way. A necessary consequence of the Unless Order was that Mr Lorimer-Wing could not challenge Mr Ashing’s expert report if he failed to pay the costs orders. It was precisely because the order had such draconian consequences that ICC Judge Barber considered carefully, in the light of the authorities, whether it should be made at all.[56]There is a superficial attraction to Mr Lorimer-Wing’s argument that, a disaster having been averted, this court should reverse the Unless Order so that there is no danger of that disaster happening again at any remitted hearing. However, in my judgment, that attraction is superficial only. ICC Judge Barber found that Mr Lorimer-Wing had conducted interlocutory proceedings unreasonably and disproportionately. He had not shown an inability to pay the resulting costs orders whether from his own resources, by borrowing against his family home or asking for help from friends and family. Ultimately, whether Mr Ashing did a good piece of work or a poor piece of work, the nature of the risk to Mr Lorimer-Wing posed by the Unless Order was the same. If he did not pay the costs orders, a court might accept Mr Ashing’s conclusions, even though Mr Lorimer-Wing could not challenge them. That consequence has nearly eventuated.[57]However, even if though the consequence eventuated, that does not make the Unless Order wrong. If Mr Ashing and the ICAEW had not spoken up and Leech J had refused permission to appeal at the oral hearing, the Unless Order would not become wrong if Mr Ashing or the ICAEW spoke up subsequently. It would just mean that the sanction implicit in the Unless Order would have operated particularly harshly, in the light of what is now known after that order was made.[58]Moreover, setting aside the Unless Order is not the only way of the court learning from the past now that all parties agree that the Quantum Order should be set aside. All parties agree that this court has power to make case management directions that govern any remitted hearing in the ICC dealing with quantum. Mr Lorimer-Wing’s appeal against the Unless Order sets up a false binary choice between him having no rights of participation at all in any proceedings remitted to the ICC and full rights of participation.[59]Indeed, it might be said that the case for the Unless Order is just as strong now as it was when ICC Judge Barber was giving her judgment. The disaster has been averted. Mr Ashing and the ICAEW have spoken up and the deficiencies in the Ashing report are known. An expert at any second trial will owe duties to the court under CPR 35 and is in a better position to avoid a repeat of Mr Ashing’s errors. The risks to Mr Lorimer-Wing of being stuck with a report that is wrong and that he cannot challenge are therefore lower than they were at the time of the Unless Order. That is particularly the case given the power of the Court to make the kind of case management directions I have described.[60]Having set up the false binary choice described in paragraph 58, Mr Lorimer-Wing is asking the court, on this appeal, to excuse him from the effects of the Unless Order even though he has not challenged any of the considerations that caused ICC Judge Barber to make that order in the first place. I will not do that. I did, however, indicate to the parties that I wanted to hear submissions from the parties as to the case management directions I should make for any quantum proceedings that are remitted to the ICC. I indicated to the parties that, given the change in circumstances now that Mr Ashing’s report is known to be defective, I would consider giving Mr Lorimer-Wing some limited rights to comment on expert materials in the remitted proceedings despite the Unless Order having been triggered.[61]I conclude by dealing with some final points that Mr Lorimer-Wing raised: i) Mr Lorimer-Wing submits that Mr Hashmi repeatedly sought to exclude him from the ICC proceedings knowing that he could not pay the costs orders. However, the difficulty with that is that ICC Judge Barber has said that he can potentially pay, or at very least she is not satisfied that he cannot pay. There has been no challenge to that factual conclusion. ii) I can understand why Mr Lorimer-Wing took exception to Mr Hashmi’s conduct in seeking security for costs of the Unless Order Appeal. Perhaps with hindsight, it does seem somewhat unattractive that an early response to the knowledge that Mr Ashing’s report was defective was to seek security for costs that could have excluded Mr Lorimer-Wing from continuing to prosecute that appeal. However, Rajah J refused the application. In my judgment, Mr Lorimer-Wing’s objection to Mr Hashmi’s conduct provides no separate basis of challenge to the Unless Order.[62]Ground 1 is dismissed.
Ground 2 – Article 6 of European Convention on Human Rights
[63]No separate arguments were ultimately advanced on Ground 2 and I consider rightly so.[64]I did not understand Mr Lorimer-Wing to argue that Article 6 precluded the making of the Unless Order. To the extent he did, that argument is at odds with the judgment of the Court of Appeal in JSC BTA Bank v Ablyazov (No 8) [2013] 1 WLR 1331, [2012] EWCA Civ 1411. Even following the Unless Order, the dispute still fell to be determined by an independent court.[65]Therefore, as I understood them, Mr Lorimer-Wing’s points on Article 6 overlapped with the points on the fairness or otherwise of maintaining the Unless Order that I have considered under Ground 1. I have sought to explain that there was no effective challenge to the ICC Judge Barber’s decision to make the Unless Order in the light of circumstances as they existed at the time. I have explained why I do not accept the conclusion that, in the light of changed circumstances, it should now be set aside altogether. I do not consider that Article 6 requires a conclusion different from that I have expressed in connection with Ground 1.
Disposition
[66]The Unless Order Appeal is dismissed.
THE QUANTUM APPEAL
[67]The parties agree that the Quantum Appeal should be allowed. So do I. The Quantum Order cannot stand given that Mr Ashing’s report is now accepted to be deficient.[68]Given the points made in paragraphs 35 and 60 above, I invited the parties to make submissions on the directions I should give when remitting the question of quantum back to the ICC. I have not been asked to settle my oral judgment on that question. Indeed the debate between the parties continued after my oral judgment with Mr Lorimer-Wing asking for further involvement while I was settling the order giving effect to this judgment.[69]I will, however, summarise the outcome so that readers of this judgment can understand what rights of involvement Mr Lorimer-Wing will have in the remitted quantum proceedings. Very broadly, Mr Hashmi has permission to instruct a new expert on share valuation matters. In a relaxation of the sanction imposed by the Unless Order I directed: i) That the new expert be provided with(i) Mr Ashing’s report,(ii) the report of Mr Lorimer-Wing’s expert (Price Bailey LLP),(iii) other specific material that Mr Lorimer-Wing identified that he said set out the flaws in Mr Ashing’s report and(iv) correspondence from Mr Ashing and the ICAEW that acknowledge those flaws. ii) That Mr Lorimer-Wing should have a right to see the new expert’s report and have the opportunity to put proportionate written questions to the expert after that report is served. The new expert will be obliged to answer those questions and the answers will be put before the court.[70]It will be seen from this that I hope that the new expert’s duties to the court under CPR 35 coupled with the safeguards I have given Mr Lorimer-Wing will avoid any re-run of the unfortunate events surrounding Mr Ashing’s report. It goes without saying that Mr Hashmi does not have licence to instruct a partisan expert to advocate for a high valuation. Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com
Order
The [Unless Order] is stayed with effect from the date of this Order with the consequence that the Appellant may pursue an application for permission to appeal against the [Quantum Order] and his application to set it aside for fraud. Order: one was made by way of the ICC Set Aside Application (see paragraph 14 above) and the other was by way of appeal to the High Court.